Liquidated Damages and Stipulated Sums: You Don’t Know as Much as You Think
A live 90-minute CLE video webinar with interactive Q&A
This CLE course will discuss a complex subject: enforcing or defeating a liquidated damages provision or one of its variations, such as stipulated sums, disincentives, lane closure charges, road user costs and reverse liquidated damages. The program will highlight why so many attorneys get these clauses wrong and why liquidated damages and stipulated sums are often held to be unenforceable.
- Overview of hornbook law of liquidated damages
- Variations on liquidated damages
- Other contract provisions that could affect enforceability
- Burdens of proof and presumptions
- Loss or harm
- Difficult to prove with certainty
- In relation to anticipated damages
- In relation to actual damages
- Caused by the breach
The panel will review these and other vital questions:
- What happens if the liquidated damages far exceed or fail to approach actual damages?
- Will liquidated damages be allowed when there are no actual damages?
- Are optional liquidated damages clauses enforceable?
- Can the non-breaching party be forced in discovery to provide actual damage amounts?
- Who has the burden of proof on the issue of liquidated/stipulated damages?
- What is the effect of termination of the contract on enforceability?
- Is mitigation relevant for liquidated damages?
Michael F. McKenna
Cohen Seglias Pallas Greenhall & Furman
With more than 40 years of construction litigation experience, Mr. McKenna has been involved in some of the... | Read More
With more than 40 years of construction litigation experience, Mr. McKenna has been involved in some of the largest construction projects in the United States. He has participated in well over 200 trials, mediations, and arbitrations across the country and internationally, representing contractors, engineers, architects, owners, and subcontractors. Mr. McKenna has particular experience in matters involving the construction of tunnels, subways, bridges, airports, sewers, foundations, marine, sub-aqueous, and other heavy construction.Close
to be announced.